Janus Theatres of Burlington, Inc. v. Aragon

410 S.E.2d 218 (1991)

104 N.C. App. 534

JANUS THEATRES OF BURLINGTON, INC. v. ARAGON, a General Partnership.

No. 9015SC1326.

Court of Appeals of North Carolina.

November 19, 1991.

*219 Brooks, Pierce, McLendon, Humphrey & Leonard by Hubert Humphrey and S. Kyle Woosley, Greensboro, for plaintiff-appellee.

Wishart, Norris, Henninger & Pittman, P.A. by Robert J. Wishart, June K. Allison and Elizabeth Leonard McKay, Burlington, for defendant-appellant.

ORR, Judge.

The first issue is whether the trial court's order is appealable.

All judgments are either interlocutory or final. See N.C.Gen.Stat. § 1A-1, Rule 54(a) (1990).

A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.

Veazy v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950) (citations omitted).

An interlocutory judgment may be appealed under certain circumstances pursuant to N.C.Gen.Stat. §§ 1-277 (1983) and 7A-27(d) (1989). Sections 1-277 and 7A-27(d) "prevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division." Waters v. Qualified Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d *220 338, 343 (1978). "Interlocutory appeals are most commonly allowed under [these sections] if delaying the appeal will prejudice any substantial rights." Davidson v. Knauff Ins. Agency, Inc., 93 N.C.App. 20, 24, 376 S.E.2d 488, 491, disc. review denied, 324 N.C. 577, 381 S.E.2d 772 (1989). To determine if a substantial right will be prejudiced if the appeal is delayed, we look to the facts and the procedural context. Id.

Here the trial court in its "order and partial summary judgment" reserves for the jury the "issue as to whether defendant has waived any objection to, or is estopped to deny, the tenant's renewal of the lease." Defendant argues that the order leaves no further action for the trial court to dispose of the case. Though the order reserves an issue for the jury, defendant argues that because the trial court determined that it is irrelevant whether notice was received, there is no requirement for a trial on the issues of waiver or estoppel. Defendant contends that

[t]he only evidence which will be admissible under the court's order is whether the notice was sent, and Aragon has no way of rebutting plaintiff's evidence that the notice of renewal was, in fact, placed in a mail box. Aragon is, therefore, effectively denied a trial on the factual issue of receipt, and, whether defendant waived notice or is estopped to deny the notice is irrelevant if, as a matter of law as this order holds, sending a notice by regular mail is in and of itself sufficient.

Therefore, defendant argues the order is effectively a final judgment and affects a substantial right. We agree.

* * *

Defendant first argues that the trial court erred in denying defendant's motion for summary judgment, allowing plaintiff's motion for partial summary judgment, and entering a judgment and declaration that exercise of an option to renew is sufficient if sent by regular mail. "[S]ummary judgment is appropriate in a declaratory judgment action where there is no genuine issue as to any material fact and either party is entitled to a judgment as a matter of law." Threatte v. Threatte, 59 N.C.App. 292, 294, 296 S.E.2d 521, 523 (1982), disc. review allowed, 307 N.C. 582, 299 S.E.2d 650, review improvidently granted, 308 N.C. 384, 302 S.E.2d 226 (1983).

In MER Properties-Salisbury v. Golden Palace, Inc., 95 N.C.App. 402, 382 S.E.2d 869 (1989), the lessee sent renewal notice by ordinary mail even though a provision in the lease required notices to be given by registered or certified mail. The lessor argued that the requirement of registered mail would eliminate the problem of proof of notice and bring certainty to business transactions. We stated that "[t]his argument might be persuasive if there was a question of receipt of the notice and [the lessee] were relying on the presumption that arises upon proof of mailing." Id. at 405, 382 S.E.2d at 871. This Court noted that other jurisdictions are divided:

Some courts have held that a lessee's failure to send the notice by registered mail as required by the lease does not relieve the lessor of its contractual obligations under the renewal provision when it is clear the lessor actually received notice. Other courts, however, have required that the lessee strictly comply with the notice requirement as specified in the lease.

Id. at 405, 382 S.E.2d at 870-71 (citations omitted). Our Court held that sending notice by ordinary mail was sufficient since the lessor received timely notice of the lessee's intention to exercise the renewal option, was not prejudiced by the lessee's failure to use registered mail, and the requirement for registered mail was located in a section entitled "Miscellaneous Provisions" fourteen pages after the renewal clause. Id. at 406, 382 S.E.2d at 871. We stated that

[t]he facts bring this case more nearly in line with the rationale of those decisions excusing strict compliance with the registered mail requirement of a lease when there is no denial that the notice was timely received.... The purpose of registered mail is to substantiate receipt, *221 and in this case, receipt has been substantiated.

Id. at 406-07, 382 S.E.2d at 871-72.

Significantly here, unlike in MER, receipt has not been substantiated, and defendant denies receiving any timely notice. Therefore, we hold that the trial court erred in determining that "there is no requirement that the option to renew be exercised by registered mail or received by landlord in order to be effective" and that the letter sent by ordinary mail is "sufficient exercise of the option to renew...." A genuine issue of material fact exists as to whether timely notice was received, and thus the trial court erred in granting summary judgment in favor of plaintiff. This case must be remanded for appropriate further proceedings.

Reversed and remanded.

COZORT and LEWIS, JJ., concur.